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Review of the Roles of the Minister of Justice and Attorney General of Canada

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Review of the Roles of the Minister of Justice and Attorney General of Canada The Honourable Review of the Roles of the A. Anne Minister of Justice and McLellan, P.C., O.C., A.O.E Attorney General of Canada June 28, 2019 1 Table of Contents EXECUTIVE SUMMARY ......................................................................................................... 1 INTRODUCTION...................................................................................................................... 6 THE CURRENT CANADIAN FRAMEWORK .................................................................... 9 The roles of the Minister of Justice and Attorney General of Canada .......................... 9 The Attorney General of Canada ................................................................................ 10 The Minister of Justice .................................................................................................. 12 The Attorney General and the Public Prosecution Service of Canada ........................ 12 Prosecutorial independence ........................................................................................ 13 Accountability ............................................................................................................... 15 Prosecutorial independence in practice ..................................................................... 16 The Director of Public Prosecutions Act .................................................................... 17 EVALUATING THE CURRENT MODEL .......................................................................... 22 Suggestions for structural change with respect to the prosecution function ............. 22 Concerns arising from having one person hold the roles of Minister of Justice and Attorney General of Canada ....................................................... 23 Concerns arising from membership in Cabinet........................................................ 25 Concerns arising from a political Attorney General ................................................ 27 Conclusion on proposed structural changes with respect to the prosecution function ............................................................................................................... 28 Suggestions for change outside the prosecution function ............................................ 29 A PROPOSED CANADIAN APPROACH TO THE ROLE OF THE ATTORNEY GENERAL.................................................................................................................................. 32 Enhancing the independence of the Attorney General in individual prosecutions ............................................................................................................. 32 A protocol for Ministerial consultations on the public interest ............................. 32 Clarifications to the PPSC Deskbook ......................................................................... 37 Increased transparency of prosecution decisions ..................................................... 38 Building a greater understanding of the role of the Attorney General ....................... 40 Education ....................................................................................................................... 40 Improvements to Open and Accountable Government ................................................ 41 i Review of the Roles of the Minister of Justice and Attorney General of Canada A separate oath of office for the Attorney General .................................................. 42 Changing the name of the Department of Justice .................................................... 43 CONCLUSION ......................................................................................................................... 44 APPENDIX A: BIOGRAPHIES ............................................................................................... 0 APPENDIX B: CONSULTATION PARTICIPANTS .......................................................... 2 APPENDIX C: SOURCES ......................................................................................................... 7 APPENDIX D: ORGANIZATION OF THE DEPARTMENT OF JUSTICE CANADA ...................................................................................................................................................... 12 APPENDIX E: ATTORNEYS GENERAL IN COMMON LAW COUNTRIES ............ 13 ii EXECUTIVE SUMMARY On March 18, 2019, the Prime Minister of Canada appointed me to be his Special Advisor on the roles of the Minister of Justice and Attorney General of Canada. He asked me to: 1. Assess the structure which has been in place since Confederation of having the roles of the Minister of Justice and Attorney General of Canada held by the same person, to determine whether there should be any legislative or operational changes to this structure; and, 2. Review the operating policies and practices across the Cabinet, and the role of public servants and political staff in their interactions with the Minister of Justice and Attorney General of Canada. To carry out this mandate, I consulted with a broad range of experts. These experts included academics, former and current government officials, political staff, lawyers, officials and academics in the United Kingdom and Australia, and most of the Attorneys General of Canada from the past twenty-five years. I also reviewed the literature on the role of the Attorney General in Canada and elsewhere. It is clear to me that there is no system for managing prosecutorial decisions that absolutely protects against the possibility of partisan interference, while providing for public accountability. I do not believe that further structural change is required in Canada to protect prosecutorial independence and promote public confidence in the criminal justice system. Legislation, education, protocols, cultural norms, constitutional principles and public transparency all play a role. The Director of Public Prosecutions Act provides strong structural protections against political interference. The personal integrity of the Attorney General is also essential; indeed, it is probably the most important element in a system which protects the rule of law. The model of having the same person hold the Minister of Justice and Attorney General roles was deliberately chosen at Confederation, and for good reason. Our system benefits from giving one person responsibility for key elements of the justice system. Joinder of the roles creates important synergies. That person gains a perspective over the entire 1 Review of the Roles of the Minister of Justice and Attorney General of Canada system which could not be achieved if the roles were divided; so too do the lawyers and policy experts who work together in the Department of Justice. Removing the Attorney General from Cabinet would also affect the credibility and quality of legal advice they provide.1 In my view, Cabinet colleagues are more likely to pay attention to the Attorney General’s legal advice because they know that the Attorney General, as a member of Cabinet, understands the political context in which they are operating. That advice is also likely to be better informed, and therefore more helpful to Cabinet. I believe that any concerns about the joined roles can be addressed through a comprehensive protocol on ministerial consultations on the public interest; an education program for ministers and others on the role of the Attorney General and related issues; a new oath of office for the Ministry of Justice and Attorney General of Canada which recognizes the unique role of the Attorney General; and changes to the Department of Justice Act, the federal prosecutors’ manual, and Open and Accountable Government, the guide for Cabinet ministers on their roles and responsibilities. Recommendations: 1. I recommend that the Attorney General of Canada develop a detailed protocol to govern ministerial consultations in specific prosecutions. This protocol should apply to ministers, their staff, the Office of the Clerk of the Privy Council and the public service. The protocol should address the following issues: a. Who is entitled to initiate consultations; b. Who determines the process for such consultations; c. When and where the consultations take place; d. Who is entitled to be part of the consultation discussions; e. What the scope of the discussion should be; and f. The Attorney General’s options and obligations in response to such consultations. I have provided advice on the details of this protocol in my report. 2 Review of the Roles of the Minister of Justice and Attorney General of Canada 2. I recommend that the Public Prosecution Service of Canada Deskbook and the 2014 Directive on Section 13 notices contained within it be updated to clarify the following: a. Section 13 notices are privileged; b. The Attorney General may share Section 13 notices with the Deputy Minister of Justice or others to obtain advice on whether they should exercise their authority to issue a directive or take over a prosecution, without affecting the privileged status of the notices; c. The Attorney General may seek additional information from the Director of Public Prosecutions upon receiving a section 13 notice; and d. The Attorney General may issue specific directives or take over a prosecution on public interest grounds or because they are of the view that there is no reasonable prospect of conviction. 3. I recommend that Attorneys General be encouraged to explain their reasons when issuing a direction or taking over a prosecution, or when
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